Juliet O'Neill and Ottawa Citizen Group Inc. v. Attorney General of Canada

From Ad IDEM / CMLA

This decision issued by the Honourable Justice Ratushny of the Ontario Superior Court arises out of two search warrants executed at the home and office of Ottawa Citizen reporter Juliet O’Neill on January 21, 2004. The search warrants alleged that Ms. O’Neill committed a criminal offence under s.4 of the Security of Information Act (SOIA) by receiving and retaining “secret official” information published in an Ottawa Citizen article on November 8, 2003. The article in question concerned Maher Arar, a Syrian born Canadian citizen whom American authorities had arrested and deported to Syria in September 2002. More specifically, the article referred to a leaked document recounting what Mr. Arar allegedly told Syrian officials about his connection to terrorist organizations, and reported that this information was being leaked by Canadian officials in defence of their investigation of Mr. Arar.

The Ottawa Citizen and Ms. O’Neill brought an application to quash the warrants and for the return of the materials seized by the police, which were sealed by the Court pending the determination of the validity of the warrants. The grounds for the application were that the communication, receipt and retention offenses in s.4 of the SOIA are unconstitutionally vague and overbroad and infringe s.2(b) of the Charter; that the warrants were an abuse of process; and that there were no reasonable and probable grounds for their issuance.

The Honourable Justice Ratushny held that the purpose of s.4 of the SOIA is to “criminalize, and therefore, deter and protect against the unauthorized release of government information that carries with it some element of harm to the national interest if released”. She held s.4 is overbroad in achieving this purpose because there is no definition of “secret official”, “official” “lawful authority” or “authorized” in the sections and no legal basis for construing these terms:

“The consequence of this is that these sections are standardless, with the result that they are facially meaningless. In their present state, the impugned sections give the state unfettered ability to arbitrarily protect whatever information it chooses to classify as “secret official” or “official” or unauthorized for disclosure and to punish by way of criminal offense those “speakers”, “receivers” and “listeners” who come within that protected sphere.”

Justice Ratushny rejected the Crown’s arguments regarding s.4, which included that the Access to Information Act could be used to limit the SOIA, that a public interest defence could be read into the section, and that prosecutorial discretion could be used to cure the overbreadth, finding:

“This is legislation that fails to define in any way the scope of what it protection and then, using the most extreme form of government control, criminalizes the conduct of those who communicate and receive information that falls within its unlimited scope including the conduct of government officials and members of the public and of the press.”

She concluded that s.4 breached s.7 of the Charter on this basis.

Justice Ratushny also found that the sections were unconstitutionally vague in that individuals cannot make a considered evaluation of whether their conduct is criminal or not, and the sections give no guidance to law enforcement officials in the exercise of their powers.

The Crown conceded that s.4 is a prima facie violation of s.2(b) of the Charter. Although Justice Ratushny did not feel it was necessary to consider whether the section was saved by s.1 of the Charter (because it was overbroad and vague and did not constitute a “limit prescribed by law”), she nonetheless undertook the balancing analysis from Oakes “out of an abundance of caution and to illustrate the importance of the guarantee of freedom of expression.”

She found that s.4 did not meet the rational connection test because the impugned sections “arbitrarily and unfairly and with a blunt club of criminal sanction restrict freedom of expression including freedom of the press”. Nor did s.4 meet the test of minimal impairment since the impugned measures had the potential to criminalize a wide variety of conduct that should not be caught, and therefore:

“have the very real potential to “chill” the pursuit and enjoyment of freedom of expression by the public and by the press”.

Justice Ratushny declined to suspend the order striking down the sections for one year as requested by the Crown because “they are dangerously over-inclusive in their punitive scope. As such they should not be able to be utilized and should immediately have no force or effect.” She also declined to order the retention of the things seized and ordered their return to the applicants.

The Applicants alleged that the warrants were an abuse of process and violated s.2(b) of the Charter. Justice Ratushny rejected several of the arguments advanced by the applicants in support of abuse of process, primarily because there was not enough evidence to infer improper motives or improper purposes. She was, however, satisfied that it was reasonable to infer that:

“the O’Neill Warrant and particularly the allegations of criminality against O’Neill were used to gain access to O’Neill for the purpose of intimidating her into compromising her constitutional right of freedom of the press, namely to reveal her confidential source or sources of the prohibited information.”

She agreed with the applicants that: “O’Neill was not the focus of the investigation, but instead, an after-the-fact casualty of the resolve of some senior administrators in the RCMP to discover the source of embarrassing leaks”.

Justice Ratushny commented that while the evidence did not allow for an inference of an improper purpose to “shut down” the media by executing search warrants on a journalist:

“the spectre of law enforcement officials being able, by virtue of the leakage provisions of the SOIA, to threaten criminal charges so as to uncover a reporter’s confidential source and thereby effect a “chill”, even unintended, on the right of freedom of expression and of the press …undermines the integrity of the judicial process.”

She further held that by its decision to allege criminal offenses and to obtain warrants on this basis, the RCMP treated O’Neill “as one of its investigative arms to uncover the source of the leaks”. In deciding to pursue this action “the RCMP engaged in conduct that used the threat of criminal charges against the media to try to get the information it wanted. Given the importance of freedom of expression and the press in our democracy, this is conduct that has caused great prejudice to those freedoms.”

She concluded that the abuse of process justified quashing of the warrants, return of the things seized, and an order as to costs.

Justice Ratushny found that the Justice of the Peace did have reasonable and probable grounds to issue the warrants notwithstanding Juliet O’Neill’s “press status”, primarily because the evidence put before the Justice of the Peace: “allowed him to understand that the press was not only being turned to so as to serve as an investigative arm of the police but also as the target with respect to the alleged crimes committed by them”.

She noted that the fact that the Justice of the Peace accorded less weight to free press interests on this basis: “brings into focus the harm caused by the decision of the RCMP to alleged criminal offences against O’Neill”. On the basis that the Justice of the Peace understood that O’Neill was being investigated for allegedly committing criminal offenses: “he had before him some reliable evidence that might reasonably be believed as to the requisite reasonable and probable grounds.”